The Supreme Court is expected to rule on Thursday, October 27, 2016 on a case that seeks to compel the Electoral Commission (EC) to allow candidates or their agents to append their signatures on the constituency collation sheets and also be given copies.
Already, the commission is facing a number of cases in court initiated by disqualified presidential aspirants.
The EC is not willing to give presidential candidates collated results from the constituencies, raising suspicion about the transparency of the electoral process.
The case, filed by a lawyer and former Director of Research at Parliament, Kwesi Nyame-Tease Eshun, exposes a serious loophole in the new Public Elections Regulations 2016 (CI 94), which came into force only last month.
The Supreme Court is being asked to declare as inconsistent with the Constitution and the duties of the EC the commission’s “failure to make provision in CI 94 requiring the Returning Officer and the contesting candidates or their representatives or counting agents to sign the Parliamentary Elections Results Collation Form and the Presidential Elections Collation Form.”
Per the new law, no candidate or political party will be allowed to access a copy of the 275 collation sheets, which hold the critical evidence as to whether the votes counted and declared at the 29,000 polling stations are the same as the collated results to be transmitted to the National Collation Centre where the results will be tallied and the winner of the presidential elections declared.
Not only are the candidates and/or their agents not entitled to a copy, there is no provision for either the Returning Officer or agents to sign and endorse the vital form.
The writ, filed on September 27, describes this failure as puzzling since the collation sheet is “strategic and critical” and it is “the endorsement of the signatures” that will validate the collation sheet “as an authentic record of the election.”
Mr Eshun, represented by Akoto Ampaw, reminds the Supreme Court that in the 2013 presidential election petition, even though the collation sheet was shown to be critical, only the EC had exclusive custody of it and denied the plaintiff’s request for all 275 sheets containing the results from the constituencies and the court supported the EC at the time and as it turned out, under the false impression that all candidates or their agents were entitled to copies of the collation sheet.
“It defies reason and constitutes an absurdity for [the EC] not to make provision for furnishing the candidates or their agents with copies thereof at the constituency collation centre,” the writ states.
In fact, the new law is even somewhat silent on agents signing the Summary Sheet, which was usually faxed to Accra with the sum total of votes obtained by presidential candidates at the constituency level.
The EC, over the weekend, indicated that the absence of signatures on the pink sheets doesn’t invalidate the results since the tallying of the pink sheets results makes the collation sheets.
CI 94 was meant to deal with flaws in the previous law (CI 74), as exposed in the 2013 election petition.
To correct it, the Electoral Reforms Committee, recommended that the Constituency Collation Sheet, which contains the results from all polling stations in a constituency as captured on the pinks sheets, should be endorsed by agents of the candidates and copies given to them.
However, Regulation 3(1) (m) of CI 94 only directs the Returning Officer at the Constituency Collation Centre “to collate and forward to the Commission the endorsed writ and collated provisional results and “post a copy at the constituency collation centre.”
The candidates or their agents are completely left out of the process where the collation of the presidential results is concerned.
But Regulation 42 gives detailed directives on what should happen regarding the parliamentary election results at the collation centre and the involvement of “the candidates or the representatives of the candidate or not more than two counting agents appointed by each candidate.”
But, at the Polling Station, the writ makes the point that all agents, for parliamentary and presidential candidates, are allowed to sign the Statement of Poll, given copies before a copy is posted at the Polling Station.
“The processes and procedures therefore permit of little legal loophole that may be easily exploited,” the writ stresses.
“From a period of relative transparency, fairness and involvement of the candidates, and/or their agents at the polling station, the election process, to the extent that it relates to the presidential elections, is thrust into a phase of opaqueness with a significantly reduced participation of candidates and/or their agents.”
It stated that “it is contention that it is grossly unreasonable, arbitrary and non-transparent for Regulation 38(3) of CI 94 to require [the EC’s] Presiding Officer at the polling station to furnish the contesting candidates, their representatives or agents, with signed copies of the declaration of results (nor popularly called pink sheets) at the polling station, while not requiring the equally important, if not more strategic, full record of election results in the constituency to the candidates, their agents or representatives at the constituency collation centre.”
The writ points out at a lot of confused directives at the constituency collation centre, even with the parliamentary results.
Unlike the presidential election results where no role of agents is stated, for the parliamentary results, Regulations 42(1)(d) says that the Returning Officer shall “invite the counting agents of the candidates to sign the declaration of result [sic] form and when signed, post a copy at the constituency collation centre.”’
But, the Schedule section of CI 94 provides samples of all the relevant forms, yet the ‘Declaration of Result form’ mentioned here cannot be found anywhere in the Schedule. The confusion is compounded because it is not clear whether it is the collation sheet or the mystery declaration from that must be posted.
For the provisions in CI 94 to promote credible elections, the writ says, “It is eminently necessary for both the Parliamentary Elections Result Collation Form (Form One EL 23A) and even more so, for the Presidential Elections Result Collation Form (Form One EL 23B) to be furnished to the contesting candidates or their agents. For, armed with Form One EL 23A and Form One EL 23B, contesting candidates will easily and readily have the means of determining by themselves the outcome of the elections and thereby reduce to the minimum the deep suspicion, palpable tension and fear that seize the contestants and the electorate between the close of the poll and the declaration of the results.”